Maples v Thomas Brief Amicus Curiae in Support of Petitioner

    No. 10-63

In The

#ujinmte CEnurt nf the Imteh States

Co r y  R. M a p l e s ,
Petitioner; 

v.

K im  T. T h o m a s , In t e r im  C o m m is s io n e r , 
A l a b a m a  D e p a r t m e n t  o f  C o r r e c t io n s ,

Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Eleventh Circuit

BRIEF OF AMICUS CURIAE NAACP LEGAL 
DEFENSE & EDUCATIONAL FUND, INC. 

IN SUPPORT OF PETITIONER

Joshua Civin 
NAACP Legal D efense & 

Educational Fund , Inc . 
1444 I Street, NW, 10th FI. 
Washington, DC 20005 
(202) 682-1300

Samuel Spital 
Squire, Sanders & 

Dempsey (US) LLP 
30 Rockefeller Plaza,
23rd FI.
New York, NY 10112

John Payton  
Director- Counsel 
Counsel o f Record 

D ebo P. Adegbile 
Christina Swarns 
Johnathan Smith 
NAACP Legal D efense & 

Educational Fund , Inc . 
99 Hudson Street, 16th FI. 
New York, NY 10013 
(212) 965-2200 
jpayton@naacpldf.org

mailto:jpayton@naacpldf.org


1

TABLE OF CONTENTS

TABLE OF CONTENTS.............................................. i
TABLE OF AUTHORITIES.................................. ...iii
INTERESTS OF AMICUS...........................................1
SUMMARY OF THE ARGUMENT........................... 1
ARGUMENT................................................................. 3
I. Giarratano and Coleman establish the

framework for this case....................................... 3
II. Developments since Giarratano and Cole­

man have dramatically altered capital 
post-conviction practice....................................... 6
A. Significant changes in federal habeas

procedure have magnified the impor­
tance of state post-conviction proceed­
ings .....................................   7

B. State post-conviction practice has be­
come far more complex, reinforcing the 
need for effective counsel............................10

C. While almost all states now require 
appointment of capital post-conviction 
counsel, this right is severely limited
by law and practice..................................... 15

D. State interests are now more aggres­
sively asserted in capital cases................ 20

III. In light of subsequent developments, Giar­
ratano and Coleman should be reconsid­
ered or at least not extended............................ 22
A. This Court should recognize a consti­

tutional guarantee of competent state



post-conviction counsel in capital cases.. 23
B. Short of reconsidering Giarratano, the 

Court should recognize a right to state 
post-conviction counsel for claims that 
could not be pursued in prior litigation .. 26

C. In the alternative, the Court should 
hold that a federal habeas petitioner 
has cause to excuse procedural default 
resulting from state post-conviction 
counsel’s errors that would rise to the 
level of a constitutional violation if 
committed at trial or on direct appeal.... 28

D. Another option would be to find cause
to excuse procedural default in a state 
such as Alabama that fails to provide 
the minimum constitutional safe­
guards that Giarratano requires.............30

E. Coleman and Giarratano should not
be extended to preclude federal habeas 
review for a death-sentenced prisoner 
abandoned by state post-conviction 
counsel......................................................... 32

F. Extension of Coleman and Giarratano 
is particularly inappropriate where 
the state is aware of, and takes inade­
quate steps to address, abandonment

ii

by post-conviction counsel......................... 34
CONCLUSION............................................................36
Appendix: Survey of State Provision of Counsel 

for Indigent Death-Sentenced Prisoners in 
State Post-Conviction Proceedings..................A -l



I l l

TABLE OF AUTHORITIES
Cases

Amadeo v. Zant, 486 U.S. 214 (1988)................ . 35
Ardolino v. People, 69 P.3d 73 (Colo. 2003)..........  27
Atkins v. Virginia, 536 U.S. 304 (2002).................  25
Banks v. Crosby, No. 4:03-cv-328, 2005 WL 

5899837 (N.D. Fla. July 29, 2005)...................... 18
Banks v. Dretke, 540 U.S. 668 (2004)..............  28, 35
Beck v. Alabama, 447 U.S. 625 (1980)..................  23
Brady v. Maryland, 373 U.S. 83 (1963).................  27
Brecht v. Abrahamson, 507 U.S. 619 (1993)............ 8
Brooks u. State, 555 So. 2d 337 (Ala. Crim.

App. 1989)..............................................................  11
Brown v. Board of Education, 347 U.S. 483 

(1954)....................................................................... 23
Coker v. Georgia, 433 U.S. 584 (1977)....................... 1
Coleman v. Thompson, 501 U.S. 722 

(1991)...............................................................passim

Commonwealth v. Grant, 813 A.2d 726 
(Pa. 2002).................................................................27

Cone v. Bell, 556 U.S. _ ,  129 S. Ct. 1769 
(2009)..................................................................27-28

Crump v. Warden, 934 P.2d 247 (Nev. 1997).......  18
Cullen v. Pinholster, 563 U.S. __, 131 S. Ct.

1388 (2011)................................................................8
Damren v. McNeil, No. 3:03-cv-397, 2009 WL 

129612 (M.D. Fla. Jan. 20, 2009) 18



IV

Daniels v. State, 561 N.E.2d 487 (Ind. 1990)........ 13
District Attorney’s Office for the Third

Judicial District v. Osborne, 557 U.S. __,
129 S. Ct. 2308 (2009)..........................................  25

Downs v. McNeil, 520 F.3d 1311 (11th Cir.
2008).......................................................................... 9

Duncan v. Louisiana, 391 U.S. 145 (1968)............23
Evitts v. Lucey, 469 U.S. 387 (1985)...........23, 25-26
Ex parte Foster, No. WR 65,799-02, 2010 WL 

5600129 (Tex. Crim. App. Dec. 30, 2010).......... 17
Ex parte Graves, 70 S.W.3d 103 (Tex. Crim.

App. 2002).................   16-17
Ex parte Kerr, No. WR 62,402-03, 2011 WL 

1644141 (Tex. Crim. App. Apr. 28, 2011).......... 17
Furman v. Georgia, 408 U.S. 238 (1972).....................1
Gibson v. Turpin, 513 S.E.2d 186 (Ga. 1999)........ 16
Gideon v. Wainwright, 372 U.S. 335 (1963)...........  21
Gore v. State, 24 So. 3d 1 (Fla. 2009)....................  18
Graham v. Florida, 560 U .S .__130 S. Ct.

2011 (2010)................................................................ 1
Halbert v. Michigan, 545 U.S. 605 

(2005).........................................................  11, 23, 28
Hale v. State, 934 P.2d 1100 (Okla. Crim. App.

1997)............................................................    18
Hamilton v. Secretary, DOC, No. 08-14836,

2010 WL 5095880 (11th Cir. Dec. 15, 2010)..... 18
Harrington v. Richter, 562 U.S. ___, 131 S. Ct.

770 (2011)........................................................  10, 24



V

Hazel-Atlas Glass Co. v. Hartford-Empire Co.,
322 U.S. 238 (1944)..............................................  30

Holland v. Florida, 560 U.S. 130 S. Ct.
2549 (2010).....................................................passim

House v. Bell, 547 U.S. 518 (2006).....................  1, 20
House v. State, 911 S.W.2d 705 (Tenn. 1995)......  18
Howell v. Crosby, 415 F.3d 1250 (11th Cir.

2005)........................................................................  18
In re Clark, 855 P.2d 729 (Cal. 1993)....................  13
In re Sanders, 981 P.2d 1038 (Cal. 1999).............  19
Jackson v. Weber, 637 N.W.2d 19 (S.D. 2001).....  18
Jefferson v. Upton, 560 U.S. __, 130 S. Ct.

2217 (2010).......................................................  13-14
Jones v. Flowers, 547 U.S. 220 (2006)..............  35-36
Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992)............. 8
Kennedy v. Louisiana, 554 U.S. 407 (2008)............. 1
Lawrence v. Florida, 549 U.S. 327 (2007).......... 29
Lozada v. Warden, 613 A.2d 818 (Conn. 1992)....  18
Manning v. State, 929 So. 2d 885 (Miss. 2006)....  13
Marks v. United States, 430 U.S. 188 (1977)..........4
Massaro v. United States, 538 U.S. 500 (2003)....  27
McCleskey v. Kemp, 481 U.S. 279 (1987)................ 1
McCleskey v. Zant, 499 U.S. 467 (1991)....................9
McFarland v. Scott, 512 U.S. 849 (1994).....  6, 7, 16
Miller v. Maass, 845 P.2d 933 (Or. Ct. App.

1993) 18



V I

Miller-El u. Dretke, 545 U.S. 231 (2005)................... 1
Missouri v. Holland, 252 U.S. 416 (1920).............  23
M.L.B. v. S.L.J., 519 U.S. 102 (1996)..................... 23
Munafv. Geren, 553 U.S. 674 (2008)..................... 29
Murray v. Carrier, 477 U.S. 478 (1986) .... 33, 35, 36
Murray v. Giarratano, 492 U.S. 1 (1989).......passim

O’Dell v. Netherland, 521 U.S. 151 (1997).............. 4
Pennsylvania v. Finley, 481 U.S. 551

(1987).............................................................. 4, 6, 26
Prowell v. State, 741 N.E.2d 704 (Ind. 2001)........ 14
Rhines v. Weber, 544 U.S. 269 (2005).......................7
Roe v. Flores-Ortega, 528 U.S. 470 (2000).............27
Roper v. Simmons, 543 U.S. 551

(2005)...................................................... 1, 23, 24, 25
Schlup v. Delo, 513 U.S. 298 (1995).......... 28, 29, 30
Slack v. McDaniel, 529 U.S. 473 (2000)................  10
Smith v. Ohio Department of Rehabilitation & 

Corrections, 463 F.3d 426 (6th Cir. 2006)..........27
State v. Addison, 7 A.3d 1225 (N.H. 2010)............15
State v. Hunt, 634 N.W.2d 475 (Neb. 2001).......... 18
State v. Mata, 916 P.2d 1035 (Ariz. 1996).............  18
State v. Zuniga, 444 S.E.2d 443 (N.C. 1994)......... 13
State ex rel. Taylor v. Whitley, 606 So. 2d 1292 

(La. 1992)................................................................ 13
State ex rel. Thomas v. Rayes, 153 P.3d 1040 

(Ariz. 2007) 27



Strickland v. Washington, 466 U.S. 668 
(1984)......................................................... . 18, 29

Strickler u. Greene, 527 U.S. 263 (1999)................  35
Teague v. Lane, 489 U.S. 288 (1989)...................... 13
Thomas v. State, 888 P.2d 522 (Okla. Grim.

App. 1994)............................................................... 13
Trop v. Dulles, 356 U.S. 86 (1958).......................... 24
Waters v. State, 574 N.E.2d 911 (Ind. 2004)......... 19
Williams u. Taylor, 529 U.S. 362 (2000).................... 8
Woodford v. Visciotti, 537 U.S. 19 (2002)...................8
Woodson v. North Carolina, 428 U.S. 280 

(1976)......................................................................  24

vii

Federal Statutes and Congressional 
Materials

Antiterrorism and Effective Death Penalty 
Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214...............................  7

18U.S.C. § 3599......................................................... 22
28U.S.C. § 2244(b).........................     9
28 U.S.C. § 2244(d)(1).......................................8-9, 18
28 U.S.C. § 2244(d)(2).........................................   9
28 U.S.C. § 2254(b)(1).....................  15
28 U.S.C. § 2254(d)......................................................8
28 U.S.C. § 2254(e)(2)................................................ 8
28 U.S.C. § 2254(i)................................................... 26
141 Cong. Rec. 15,016 (1995)..................................  10



V l l l

State Statutes
Ala. Code § 15-12-23(d)............... ......... ...................19
Ariz. Rev. Stat. Ann. § 13-4041(F)............................19
Airiz. Rev. Stat. Ann. § 13-4041(G).......................... 19
Colo. Rev. Stat. §§ 16-12-201 et seq........................ 13
Colo. Rev. Stat. § 16-12-205(5)...............................  18
Fla. Stat. § 27.711(4)................................ ........... . 19
Mont. Code Ann. § 46-21-105(2).............................  18
N.C. Gen. Stat. § 15A-1415(a).................................. 12
N.C. Gen. Stat. § 15A-1419(c)........................   18
Ohio Rev. Code Ann. § 2953.21(A)(2)......................13
Ohio Rev. Code Ann. § 2953.21(I)(2)....................... 18
Ohio Rev. Code. Ann. § 2953.23 .............................  13
Okla. Stat. tit. 22, § 1089(D)(1).............................. 13
S.C. Code Ann. § 16-3-26(B)(2)................................. 19
S.C. Code Ann. § 17-27-160(B).................................19
Tenn. Code Ann. § 40-30-102(c)................................13
Tenn. Code Ann. § 40-30-106(d)..................  11
Tenn. Post-Conviction Procedure Act, 1995 

Tenn. Pub. Acts ch. 207........................................  11
Tex. Code Crim. Proc. Ann. art. 11.071 § 2 (a ).......16
Tex. Code Crim. Proc. Ann. art. 11.071 § 2 (b ).......21
Tex. Code Crim. Proc. Ann. art. 11.071 § 2A(a).... 19
Tex. Code Crim. Proc. Ann. art. 11.071 § 4 ............ 13
Tex. Code Crim. Proc. Ann. art. 11.071 § 5 ............ 13



Va. Code Ann. § 8.01-654.1...................................... 12
Va. Code Ann. § 19.2-163.7....................................... 12
Va. Code Ann. § 19.2-163.8(D)..................................18

ix

State Rules and Policies
Ala. R. Crim. P. 32.6(b)............................................ 11
Amendments to Florida Rules of Criminal 

Procedure 3.851, 3.852, and 3.993, 797 So.
2d 1213 (Fla. 2001) ..............................................  12

California Supreme Court, Supreme Court 
Policies Regarding Cases Arising From 
Judgments of Death, § 2-2.1, available at 
http://www.courtinfo.ca.gov/courts/supreme/ 
aa02f.pdf..............................  19

Fla. R. Crim. P. 3.851(e)(1)..................... .......... 11-12
Miss. R. App. P. 22(c)(5)(i).............   12
Miss. R. App. P. 22(c)(6).............................................12

Other Authorities
American Bar Association, Evaluating 

Fairness and Accuracy in State Death 
Penalty Systems: The Alabama Death
Penalty Assessment Report (June 2006), 
available at http://www.americanbar.org/ 
content/dam/aba/migrated/moratorium/asse 
ssmentproject/alabama/report.authcheckda 
m .pdf.......................................................................32

American Bar Association, Evaluaiing 
Fairness and Accuracy in State Death

http://www.courtinfo.ca.gov/courts/supreme/
http://www.americanbar.org/


X

Penalty Systems: The Georgia Death Penalty 
Assessment Report (Jan. 2006), available at 
http://www.americanbar.org/content/dam/ab 
a/migrated/moratorium/assessmentproject/g 
eorgia/report.authcheckdam.pdf......................... 16

American Bar Association, Evaluating 
Fairness and Accuracy in State Death 
Penalty Systems: The Ohio Death Penalty 
Assessment Report (Sept. 2007), available at 
http://www.americanbar.org/content/dam/ab 
a/migrated/moratorium/assessmentproject/o 
hio/finalreport.authcheckdam.pdf......................14

Committee on Identifying the Needs of the 
Forensic Science Community, National 
Research Council, Strengthening Forensic 
Science in the United States: A Path 
Forward (2009), available at http://www. 
ncjrs.gov/pdffilesl/nij/ grants/228091.pdf........... 20

Equal Justice Initiative, The Death Penalty in 
Alabama (Jan. 2011), available at 
http://eji.org/eji/files/02.03.ll%20Death%20 
Penalty%20in%20Alabama%20Fact%20She 
et.pdf.........................................................................31

Samuel R. Gross et al., Exonerations in the 
United States 1989 Through 2003, 95 J.
Crim. L. & Criminology 523 (2005)...................  20

James C. Ho, Defending Texas: The Office of 
the Solicitor General, 29 Rev. Litig. 471 
(2010) ................................................................................21

Andrea Keilen & Maurie Levin, Moving 
Forward: A Map for Meaningful Habeas 
Reform in Texas Capital Cases, 34 Am. J.

http://www.americanbar.org/content/dam/ab
http://www.americanbar.org/content/dam/ab
http://www
http://eji.org/eji/files/02.03.ll%20Death%20


X I

Crim. L. 207 (2007)...................................  13-14, 17
James R. Layton, The Evolving Role of the 

State Solicitor General: Toward the Federal 
Model?, 3 J. App. Prac. & Process 533 
(2001) ..................................................................................  21

Mark E. Olive, Capital Post-Conviction 
Representation Models: Lessons From
Florida, 34 Am. J. Crim. L. 277 (2007).............. 21

Peter Page, State Solicitor General 
Appointments Open Doors for Appellate 
Practitioners, Nat’l L.J., Aug. 18, 2008...............21

Petition for Writ of Certiorari, Barbour v. 
Allen, 551 U.S. 1134 (2007) (No. 06-10605).......  13

Texas Defender Service, Lethal Indifference:
The Fatal Combination of Incompetent 
Attorneys and Unaccountable Courts in 
Texas Death Penalty Appeals (2002), 
available at http://www.texasdefender.org/ 
publications#............................................................17

http://www.texasdefender.org/


1

INTERESTS OF AMICUS
The NAACP Legal Defense & Educational Fund, 

Inc. (LDF) is a non-profit legal organization that has 
assisted African Americans and other people of color 
in securing their civil and constitutional rights for 
more than seven decades. LDF has a long-standing 
concern with the fair and unbiased administration of 
the criminal justice system in general, and the death 
penalty in particular. For this reason, LDF has 
served as counsel in cases before this Court includ­
ing, inter alia, Furman v. Georgia, 408 U.S. 238 
(1972), Coker v. Georgia, 433 U.S. 584 (1977), McCle- 
skey v. Kemp, 481 U.S. 279 (1987), Banks v. Dretke, 
540 U.S. 668 (2004), and House v. Bell, 547 U.S. 518
(2006), and it has appeared as amicus curiae in, inter 
alia, Roper v. Simmons, 543 U.S. 551 (2005), Ken­
nedy v. Louisiana, 554 U.S. 407 (2008), and Graham 
v. Florida, 560 U.S. 130 S. Ct. 2011 (2010).

SUMMARY OF THE ARGUMENT
Through no fault of his own, Cory Maples faces 

execution by the state of Alabama without any 
merits review of serious constitutional challenges to 
his conviction and sentence. His trial lawyers 
admitted to “stumbling around in the dark” due to 
their inexperience litigating capital cases. Pet. Br. 
8-9. Then, his state post-conviction counsel aban-

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus 
state that no counsel for a party authored this brief in whole or 
in part, and that no person other than amicus, its members, or 
its counsel made a monetary contribution to the preparation or 
submission of this brief. The parties have filed blanket consent 
letters with the Clerk of the Court pursuant to Supreme Court 
Rule 37.3.



2

doned him while proceedings were pending. When 
the state court clerk’s office learned this, it did noth­
ing to alert Maples before a critical filing deadline 
expired.

It is well settled that federal habeas courts have 
equitable authority to excuse a state-court proce­
dural default such as a missed filing deadline. 
Nonetheless, a divided panel of the Eleventh Circuit 
held that there was insufficient “cause” to do so here, 
notwithstanding the incomprehensible failings of 
Maples’s attorneys and the court clerk’s office. As a 
result, federal habeas review was entirely foreclosed.

That decision cannot stand. An appropriate rem­
edy must account for the developments that have 
dramatically altered the legal landscape over the 
past twenty years. In Murray v. Giarratano, 492 
U.S. 1 (1989), and Coleman v. Thompson, 501 U.S. 
722 (1991), this Court declined to provide constitu­
tional or equitable safeguards against incompetent 
state post-conviction counsel in capital cases. Since 
1991, however, numerous procedural obstacles have 
been erected throughout the post-conviction process. 
This increasing “complexity . . . makes it unlikely 
that capital defendants will be able to file successful 
petitions for collateral relief without the assistance 
of a person learned in the law.” Giarratano, 492 
U.S. at 14 (Kennedy, J., concurring in the judgment). 
Although most death-penalty states (with the nota­
ble exception of Alabama) have recognized these per­
ils and now guarantee capital post-conviction coun­
sel as a matter of state law, this right is frequently 
under-enforced, and the performance of appointed 
counsel is often woefully inadequate.



3

In light of these developments, it would be un­
warranted for this Court to extend Giarratano and 
Coleman to the distinctive circumstances at issue 
here. Maples — sentenced to death in one of the few 
states that provides no right to capital post­
conviction counsel — was entirely blameless for a 
state-court procedural default caused by attorney 
abandonment and state misconduct. Accordingly, 
amicus agrees with Petitioner that the Eleventh Cir­
cuit’s refusal to find cause to excuse the procedural 
default in this case should be reversed.

In addition, this case offers the Court an occasion 
to take account of the dangerous fissures that have 
opened in the post-conviction landscape in the past 
two decades and to provide additional safeguards to 
ensure that death-sentenced prisoners in Alabama 
and elsewhere are not unfairly penalized for attor­
ney misconduct that would rise to the level of a con­
stitutional violation if committed during trial or on 
direct appeal. To this end, amicus sets out a gradu­
ated series of protections that this Court could adopt 
— either as a matter of constitutional right or 
through the equitable principles underlying the 
Great Writ of Habeas Corpus.

ARGUMENT

I. Giarratano and Coleman establish the 
framework for this case.
The legal foundations for this case trace back to 

this Court’s decisions in Giarratano and Coleman.

Decided in 1989, Giarratano held that Virginia 
death-row prisoners were not constitutionally enti­
tled to increased legal assistance in state post­
conviction proceedings. 492 U.S. at 3-4. On behalf



4

of a four-justice plurality, then-Chief Justice 
Rehnquist built upon the Court’s prior holding that, 
as a general matter, there is “no underlying constitu­
tional right to appointed counsel in state postconvic­
tion proceedings.” Pennsylvania v. Finley, 481 U.S. 
551, 557 (1987). That proposition is settled, and 
amicus does not contest it here.

Rather, amicus takes issue with the Giarratano 
plurality’s reasoning that this proposition “should 
apply no differently in capital cases than in noncapi­
tal cases.” 492 U.S. at 10. The Court’s 5-4 decision 
did not turn on that categorical pronouncement. 
Justice Kennedy’s separate concurrence provides a 
more nuanced, fact-sensitive view of the constitu­
tional protections for death-sentenced prisoners. Id. 
at 14-15 (Kennedy, J., concurring in the judgment). 
Because Justice Kennedy’s concurrence is narrower 
than the plurality’s reasoning, it is controlling. See 
O’Dell v. Netherland, 521 U.S. 151, 162 (1997); 
Marks v. United States, 430 U.S. 188, 193 (1977).

Declining to rely on Finley or to import its ration­
ale into the capital context, Justice Kennedy agreed 
with the four dissenters that “collateral relief pro­
ceedings are a central part of the review process for 
prisoners sentenced to death” because “a substantial 
proportion of these prisoners succeed in having their 
death sentences vacated in habeas corpus proceed­
ings.” Giarratano, 492 U.S. at 14 (Kennedy, J., con­
curring in the judgment). Moreover, he recognized 
that “ [t]he complexity of our jurisprudence in this 
area . . . makes it unlikely that capital defendants 
will be able to file successful petitions for collateral 
relief without the assistance of persons learned in 
the law.” Id.



5

Nevertheless, Justice Kennedy determined that 
the constitutional “requirement of meaningful access 
can be satisfied in various ways.” Id. While he rec­
ognized that “Virginia has not adopted procedures 
for securing representation that are as far reaching 
and effective as those available in other States,” 
Justice Kennedy concluded that, “ [o]n the facts and 
record of this case,” Virginia had met its constitu­
tional duty. Id. at 14-15 (emphasis added).

Two years later in Coleman, the Court applied 
Giarratano in the federal habeas context. A death- 
sentenced prisoner, also from Virginia, argued that 
the negligence of his state post-conviction counsel 
should provide cause to excuse the procedural de­
fault that occurred due to his failure to timely appeal 
the state post-conviction trial court’s denial of his 
claims. Coleman, 501 U.S. at 752-54. The Court re­
jected this argument. Because Giarratano held that 
there is no constitutional right to post-conviction 
counsel for Virginia death-row prisoners, the Court 
concluded that “any attorney error that led to the de­
fault of Coleman’s claims in state court cannot con­
stitute cause to excuse the default in federal 
habeas.” Coleman, 501 U.S. at 757.

Nothing in Coleman suggested any change in the 
facts, which were critical to Justice Kennedy’s 
pivotal concurrence in Giarratano, concerning post­
conviction capital representation in Virginia. Thus, 
it was unremarkable that Coleman did not reference 
Justice Kennedy’s controlling view in Giarratano 
that the facts concerning access to the courts are de­
terminative of the post-conviction right to counsel for 
death-sentenced persons.



6

Coleman did suggest that a serious aecess-to- 
courts problem may arise where post-conviction 
counsel’s ineffectiveness prevented review of claims 
that could only be fully and fairly litigated for the 
first time in post-conviction proceedings. 501 U.S. at 
755-56. But Coleman declined to decide whether 
there is “an exception to the rule of Finley and Giar- 
ratano” in such circumstances. Id. at 755. That 
broad question was left unresolved because Coleman 
did not challenge the effectiveness of his representa­
tion at the trial-court stage of post-conviction review. 
Id. at 755-57.

While this Court has subsequently cited Coleman 
and Giarratano, see, e.g., McFarland v. Scott, 512 
U.S. 849, 855-56 (1994), it has not directly revisited 
the scope of those two cases, despite profound 
changes in capital post-conviction litigation proc­
esses over the past twenty years.
II. Developments since Giarratano and Cole­

man have dramatically altered capital post­
conviction practice.

Giarratano and Coleman were grounded in the 
legal landscape of their time. While Justice Ken­
nedy’s Giarratano concurrence encouraged Congress 
and the states to experiment with “responsible solu­
tions” to the problem of meaningful access to state 
post-conviction proceedings, 492 U.S. at 14 (Ken­
nedy, J., concurring in the judgment), they have 
done just the opposite. Over the past two decades, 
federal legislation has imposed additional barriers to 
federal review of state capital convictions; many of 
these bars are triggered by defaults in preceding 
state-court litigation. As a result, state post­



7

conviction litigation has become the primary forum 
for the vindication of federal constitutional rights, 
including the adjudication of claims of innocence. 
Simultaneously, state post-conviction procedures 
have become more complex, convoluted, and fast 
paced.

Furthermore, while almost all death-penalty 
states now provide post-conviction counsel in capital 
cases as a matter of state law, most have been un­
willing to enforce any guarantee of minimally 
effective representation. Thus, the representation 
provided to death-sentenced prisoners in state post­
conviction proceedings is all-too-often woefully in­
adequate.

A. Significant changes in federal habeas 
procedure have magnified the impor­
tance of state post-conviction proceed­
ings.

In the twenty years since Giarratano and Cole­
man, substantive revisions to federal habeas proce­
dure have made state post-conviction proceedings 
the primary forum for the presentation and adjudi­
cation of federal constitutional claims. In particular, 
the enactment of the Antiterrorism and Effective 
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 
104-132, 110 Stat. 1214, “dramatically altered the 
landscape for federal habeas corpus petitions.” 
Rhines v. Weber, 544 U.S. 269, 274 (2005).2

2 Pre-AEDPA, this Court’s “death penalty jurisprudence 
unquestionably [was] difficult even for a trained lawyer to mas­
ter.” McFarland, 512 U.S. at 856 (citation and quotation marks 
omitted). But many pre-AEDPA obstacles emerged in decisions



8

First, AEDPA imposed a “highly deferential stan­
dard for evaluating state-court rulings.” Woodford v. 
Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (cita­
tion and internal quotation marks omitted). Federal 
courts may grant habeas relief only when a state- 
court “merits” determination “was contrary to” or 
“involved an unreasonable application o f ’ this 
Court’s precedents, or when the decision “was based 
on an unreasonable determination of the facts in 
light of the evidence presented in the State court 
proceeding.” 28 U.S.C. § 2254(d). Even state-court 
decisions that “applied clearly established federal 
law erroneously or incorrectly” are irremediable 
unless the error is “also . . . unreasonable.” Williams 
v. Taylor, 529 U.S. 362, 411 (2000).

Second, AEDPA made it even more critical for pe­
titioners to develop the factual basis for all known 
claims in state court. Not only is federal habeas 
review of certain claims “limited to the record that 
was before the state court that adjudicated the claim
on the merits,” Cullen u. Pinholster, 563 U .S .__, 131
S. Ct. 1388, 1398 (2011), but AEDPA also imposes a 
restrictive standard for evidentiary hearings in fed­
eral habeas proceedings, 28 U.S.C. § 2254(e)(2). As a 
result, “ [although state prisoners may sometimes 
submit new evidence in federal court, AEDPA’s 
statutory scheme is designed to strongly discourage 
them from doing so.” Cullen, 131 S. Ct. at 1401.

Third, AEDPA’s imposition of a one-year filing 
deadline for federal habeas petitions has exacerbated 
the plight of indigent death-row prisoners. See 28

that post-dated Giarratano. See, e.g., Keeney v. Tamayo-Reyes, 
504 U.S. 1 (1992); Brecht v. Abrahamson, 507 U.S. 619 (1993).



9

U.S.C. § 2244(d)(1). Although this statute of limita­
tions is tolled while state post-conviction proceedings 
are pending, it runs throughout the time that the 
state post-conviction petition is prepared for filing, 
and it starts running again immediately upon entry 
of a final state-court judgment. See id. § 2244(d)(2). 
These time limitations make it even more critical for 
death-sentenced prisoners to have assistance from 
qualified counsel who can efficiently and effectively 
research, investigate, and draft a state post­
conviction pleading. Otherwise, the petitioner will 
be in danger of defaulting claims under state plead­
ing requirements or of filing the state pleading so 
late in AEDPA’s one-year limitation period that the 
time remaining to prepare a federal habeas petition 
after a final state-court judgment is inadequate. 
See, e.g., Downs v. McNeil, 520 F.3d 1311, 1318 (11th 
Cir. 2008) (post-conviction attorneys “waited until 
the eleventh hour to file [their client’s] state habeas 
petition,” thereby leaving only one business day to 
file a federal habeas petition).3

Finally, AEDPA generally prohibits the succes­
sive litigation of federal habeas petitions. 28 U.S.C. 
§ 2244(b). These restrictions are far more stringent 
than those applied pre-AEDPA or, indeed, at the 
time that Giarratano and Coleman were decided. 
See McCleskey v. Zant, 499 U.S. 467, 493-95 (1991). 
Thus, except in extremely limited circumstances, a 
death-sentenced prisoner now has only one opportu­
nity to seek federal habeas review.

3 Even shorter post-conviction deadlines in many states in­
crease the time pressure to adequately investigate and plead 
all constitutional claims. See infra at 12-13 & nn.5, 6.



10

The changes outlined above fundamentally al­
tered the relationship between state and federal 
post-conviction proceedings. Post-AEDPA, a con­
demned prisoner’s ability to properly present a fed­
eral claim in a state post-conviction forum is literally 
a matter of life and death. Federal habeas review is 
far more limited and no longer serves as the cure-all 
for mistakes of law and fact which occur in state 
post-conviction proceedings, as it did when Giar- 
ratano was decided. Instead, “state proceedings are 
the central process, not just a preliminary step for a 
later federal habeas proceeding,” Harrington v. Rich­
ter, 562 U.S. 131 S. Ct. 770, 787 (2011), and state 
courts’ pronouncements on questions of guilt and 
punishment routinely become authoritative.

Nevertheless, this Court recently explained that 
“ [w]hen Congress [in AEDPA] codified new rules 
governing this previously judicially managed area of 
law, it did so without losing sight of the fact that the 
‘writ of habeas corpus plays a vital role in protecting 
constitutional rights.’” Holland v. Florida, 560 U.S.
__, 130 S. Ct. 2549, 2562 (2010) (quoting Slack v.
McDaniel, 529 U.S. 473, 483 (2000)). Indeed, Con­
gress considered and rejected proposals that would 
have effectively eliminated federal habeas review for 
any claim that had been litigated in state court. See, 
e.g., 141 Cong. Rec. 15,016, 15,044-45, 15,066 (1995).

B. State post-conviction practice has be­
come far more complex, reinforcing the 
need for effective counsel.

The two decades since Giarratano and Coleman 
have also seen sweeping changes in state post­
conviction rules. Many states have imposed rigid



11

deadlines and procedural restrictions on access to 
their own post-conviction forums. As a result, state 
post-conviction procedure, like the appellate review 
process at issue in Halbert v. Michigan, is an in­
creasingly “perilous endeavor for a layperson” to 
navigate without the benefit of counsel, and it goes 
“well beyond the competence of individuals . . . who 
have little education, learning disabilities, and men­
tal impairments” — a profile all too common among 
death-row prisoners. 545 U.S. 605, 621 (2005).

Since Giarratano, many death-penalty states 
have tightened pleading requirements and other 
rules governing presentation of federal claims in 
state post-conviction proceedings. For instance, leg­
islative changes, adopted by Tennessee in 1995, re­
quire petitioners seeking post-conviction relief to 
plead “a clear and specific statement of all grounds 
upon which relief is sought, including full disclosure 
of the factual basis of those grounds.” Tenn. Post- 
Conviction Procedure Act, 1995 Tenn. Pub. Acts ch. 
207, § 1 (codified at Tenn. Code Ann. § 40-30-106(d)). 
Tennessee also provides that “bare allegation[s] that 
a constitutional right has been violated and mere 
conclusions of law shall not be sufficient to warrant 
any further [post-conviction] proceedings.” Id.4

Similarly, as a result of post -Giarratano revisions 
to Florida rules, petitioners must now meet specific 
pleading requirements, including, inter alia, “de­

4 Not all such changes have occurred since Giarratano. 
This Tennessee provision is almost identical to a long-standing 
pleading requirement imposed by neighboring Alabama. See 
Ala. R. Crim. P. 32.6(b); Brooks v. State, 555 So. 2d 337, 337 
(Ala. Crim. App. 1989).



12

tailed allegation[s] of the factual basis for any claim 
for which an evidentiary hearing is sought,” and of 
“any purely legal or constitutional claim for which an 
evidentiary hearing is not required and the reason 
that this claim could not have been or was not raised 
on direct appeal.” Fla. R. Crim. P. 3.851(e)(1); 
Amendments to Fla. Rules of Crim. P. 3.851, 3.852, 
and 3.993, 797 So. 2d 1213, 1218-19, 1228-29 (Fla. 
2001). Such heightened pleading standards increase 
the necessity of developing specific factual support 
for every claim at the initial stage of state post­
conviction proceedings, thereby creating a threshold 
obstacle that is particularly difficult for a death- 
sentenced individual to surmount while confined in 
prison without competent counsel.

Further, many death-penalty states have adopted 
stringent post-conviction filing deadlines.5 Others 
have created “unitary” systems, in which death- 
sentenced prisoners must prepare for both direct ap­
peal and state post-conviction proceedings simulta­

5 For instance, Mississippi rule amendments, adopted in 
1996, provide that a capital post-conviction petition generally 
must be filed within 30 days following the Mississippi Supreme 
Court’s grant of permission to file, and such permission must 
be requested no later than 180 days after post-conviction coun­
sel is appointed or 60 days following denial of rehearing on di­
rect appeal, whichever is later. Miss. R. App. P. 22(c)(5)(i), (6); 
see also, e.g., N.C. Gen. Stat. § 15A-1415(a) (120-day deadline 
for most post-conviction capital petitions, adopted in 1996); Va. 
Code Ann. §§ 8.01-654.1, 19.2-163.7 (120-day deadline, adopted 
in 1998, from the appointment of post-conviction capital coun­
sel, which must occur within 30 days of the Virginia Supreme 
Court’s decision affirming a death sentence; otherwise a 60-day 
deadline, adopted in 1995, applies).



13

neously, shortly after the conclusion of trial.6
Also as a result of changes over the past twenty 

years, most death-penalty states now preclude the 
filing of successive state post-conviction petitions, 
except in very limited circumstances.7 Additionally, 
many states have narrowed the scope of relief avail­
able in post-conviction proceedings by adopting non­
retroactivity rules modeled on those announced by 
this Court in Teague v. Lane, 489 U.S. 288 (1989).8

Finally, in Alabama and elsewhere, it has become 
prevailing practice for state courts to dismiss capital 
post-conviction petitions by adopting verbatim or­
ders drafted by state prosecutors, without any judi­
cial review of the content of those orders. See Peti­
tion for Writ of Certiorari, Barbour v. Allen, 551 U.S. 
1134 (2007) (No. 06-10605), at 17-18.9 In a recent

6 Since Giarratano, unitary systems have been adopted in 
states such as Colorado, Ohio, Oklahoma, and Texas. See Colo. 
Rev. Stat. §§ 16-12-201 et seq. (adopted in 1997); Ohio Rev. 
Code Ann. § 2953.21(A)(2) (adopted in 1995); Okla. Stat. tit. 22, 
§ 1089(D)(1) (adopted in 1995); Tex. Code Crim. Proc. Ann. art 
11.071 § 4 (adopted in 1995).

7 For instance, Ohio, Tennessee, and Texas adopted restric­
tions on successive petitions in 1995. See Ohio Rev. Code. Ann. 
§ 2953.23; Tenn. Code Ann. § 40-30-102(c); Tex. Code Crim. 
Proc. Ann. art. 11.071 § 5; see also, e.g., In re Clark, 855 P.2d 
729, 740-45 (Cal. 1993).

8 See, e.g., Manning v. State, 929 So. 2d 885, 900 (Miss. 
2006); State v. Zuniga, 444 S.E.2d 443, 446 (N.C. 1994); Tho­
mas v. State, 888 P.2d 522, 527 (Okla. Crim. App. 1994); State 
ex rel. Taylor v. Whitley, 606 So. 2d 1292, 1296-97 (La. 1992); 
Daniels v. State, 561 N.E.2d 487, 489 (Ind. 1990).

9 See also Andrea Keilen & Maurie Levin, Moving Forward: 
A Map for Meaningful Habeas Reform in Texas Capital Cases, 
34 Am. J. Crim. L. 207, 225 (2007) (hereinafter Keilen & Levin,



14

capital case, the Court “criticized that practice.” Jef­
ferson v. Upton, 560 U.S. __, 130 S. Ct. 2217, 2223
(2010) (per curiam). The need for adequate legal 
representation is magnified where state judges fail 
to play an independent role in protecting petitioners’ 
rights and, instead, simply countersign orders that 
contain unsupported factual findings, nonexistent 
procedural defaults, and tenuous legal conclusions 
drafted by state prosecutors seeking to invoke every 
possible legal ground for rejecting the petitioners’ 
claims and insulating the case from federal habeas 
review.

By tightening deadlines and adopting AEDPA- 
like procedural restrictions, states have substan­
tially complicated the maze of complex rules that 
death-sentenced prisoners must navigate during 
state post-conviction proceedings. The most imme­
diate effect of these changes is to limit condemned 
individuals’ right of meaningful access to a state 
post-conviction forum to litigate constitutional chal­
lenges to their convictions and sentences. There is,

Moving Forward) (finding that, in 90% of Texas capital post­
conviction proceedings between 1995 and 2006, the trial court’s 
findings were virtually identical to those submitted by state 
prosecutors); Prowell v. State, 741 N.E.2d 704, 708 (Ind. 2001) 
(observing that “ [i]t is not uncommon” for Indiana courts “to 
enter findings that are verbatim reproductions of submissions 
by the prevailing party”); Am. Bar Ass’n, Evaluating Fairness 
and Accuracy in State Death Penalty Systems: The Ohio Death 
Penalty Assessment Report 264-65 (Sept. 2007), available at 
http://www.americanbar.org/content/dam/aba/migrated/morator 
ium/assessmentproject/ohio/finalreport.authcheckdam.pdf (sur­
veying Ohio post-conviction courts’ practice of “wholesale adop­
tion of the State’s proposed finds of fact and conclusions of 
law”).

http://www.americanbar.org/content/dam/aba/migrated/morator


15

however, a still more drastic secondary effect. Be­
cause the exhaustion of state remedies is generally a 
precondition for federal habeas review, 28 U.S.C. 
§ 2254(b)(1), states’ purported post-conviction “reme­
dies” ensnare prisoners in procedural defaults that 
bar their claims in federal court.

C. While almost all states now require ap­
pointment of capital post-conviction 
counsel, this right is severely limited by 
law and practice.

Over the past twenty years, states have increas­
ingly recognized that “collateral relief proceedings 
are a central part of the review process for prisoners 
sentenced to death” and therefore “the assistance of 
persons learned in the law” is necessary to navigate 
the “complexity” of these proceedings. Giarratano, 
492 U.S. at 14 (Kennedy, J., concurring in the judg­
ment). When Giarratano was decided, eighteen of 
the thirty-seven death-penalty states guaranteed 
appointment of state post-conviction counsel for in­
digent death-sentenced individuals. Id. at 10 n.5 
(plurality opinion); id. at 30 & n.26 (Stevens, J., dis­
senting). Today, by contrast, almost all of the thirty- 
four states that permit imposition of the death pen­
alty provide such a right to counsel — and Alabama 
is a distinct outlier among the few that do not.10

10 The appendix to this brief compiles the rules for ap­
pointment of capital post-conviction counsel in death-penalty 
states. Thirty-one states provide a right to counsel. Of the 
three remaining states, New Hampshire has sentenced only 
one individual to death since it revised its death-penalty stat­
ute in 1977, and his conviction and sentence are still pending 
on direct review. See State v. Addison, 7 A.3d 1225, 1256 (N.H. 
2010). While Georgia does not guarantee capital post-



16

Notwithstanding this positive trend, most states 
severely limit the substance of the right to post­
conviction counsel by law or in practice. For in­
stance, in eleven death-penalty states, the appoint­
ment of post-conviction counsel occurs only after a 
post-conviction petition is timely filed pro se. See 
Appendix. Even if appointed counsel is permitted to 
amend the petition, requiring pro se initiation of 
post-conviction procedures can have a substantial 
chilling effect. Cf. McFarland, 512 U.S. at 856 (“Re­
quiring an indigent capital petitioner to proceed 
without counsel in order to obtain counsel . . . would 
expose him to the substantial risk that his habeas 
claims never would be heard on the merits.”).

Moreover, a paper guarantee of post-conviction 
counsel does not ensure quality, or even minimally 
adequate, representation, especially in light of the 
technical complexity of capital post-conviction re­
view. In Texas, for instance, “competent” counsel is 
required by statute in capital post-conviction pro­
ceedings. Tex. Code Crim. Proc. Ann. art. 11.071 
§ 2(a). The Texas Court of Criminal Appeals, how­
ever, has interpreted this competency requirement 
as measuring only counsel’s “qualifications, experi­
ence, and abilities at the time of his appointment,” 
regardless of performance. Ex parte Graves, 70

conviction counsel, it provides some funding to the Georgia Ap­
pellate and Educational Resource Center, which represents 
some death-sentenced individuals in state habeas appeals. See 
Gibson v. Turpin, 513 S.E.2d 186, 187-88, 191 (Ga. 1999); Am. 
Bar Ass’n, Evaluating Fairness and Accuracy in State Death 
Penalty Systems: The Georgia Death Penalty Assessment Report 
196-97 & n.113 (Jan. 2006), available at
http://www.americanbar.org/content/dam/aba/migrated/mora- 
torium/assessmentproject/georgia/report.authcheckdam.pdf.

http://www.americanbar.org/content/dam/aba/migrated/mora-torium/assessmentproject/georgia/report.authcheckdam.pdf
http://www.americanbar.org/content/dam/aba/migrated/mora-torium/assessmentproject/georgia/report.authcheckdam.pdf


17

S.W.3d 103, 113-14 (Tex. Crim. App. 2002). Accord­
ingly, the Court of Criminal Appeals has refused to 
permit a claim of ineffective assistance of post­
conviction counsel to be heard in a successive peti­
tion. Id. at 117-18.11 The inadequacies of Texas’s 
approach are evident in multiple stories of appointed 
post-conviction counsel who failed to raise any cogni­
zable or extra-record claims, cut and pasted their cli­
ent’s letters into their pleadings instead of writing a 
legal claim for relief, used boilerplate pleadings that 
failed to change the client name or the facts of the 
crime, never visited their client, and failed to con­
duct any investigation whatsoever.12

Like Texas, at least ten other death-penalty 
states that guarantee a right to post-conviction capi­
tal counsel refuse to provide any relief when attor­
neys provide ineffective assistance, at least so long 
as those attorneys met state qualification standards

11 Ex parte Graves has been called into question by the peti­
tioner’s subsequent exoneration, as well as documented exam­
ples of extraordinary incompetence by appointed post­
conviction counsel in other Texas cases. See Ex parte Kerr, No. 
WR 62,402-03, 2011 WL 1644141 (Tex. Crim. App. Apr. 28, 
2011) (Price, J., dissenting); Ex parte Foster, No. WR 65,799-02, 
2010 WL 5600129, at *2 (Tex. Crim. App. Dec. 30, 2010) (Price, 
J., dissenting).

12 See Keilen & Levin, Moving Forward, at 225-32, 239-43, 
248-49. Of state post-conviction petitions filed in Texas capital 
cases between 1995 and 2006, 12% were less than fifteen pages, 
27% contained no extra-record claims, and 38% did not attach 
any extra record materials. Id. at 225; see also generally Texas 
Defender Service, Lethal Indifference: The Fatal Combination 
of Incompetent Attorneys and Unaccountable Courts in Texas 
Death Penalty Appeals (2002), available at 
http://www.texasdefender.Org/publications#.

http://www.texasdefender.Org/publications%23


18

at the time of their appointment.13 Among these 
states is Florida, where there are numerous recent 
examples of attorneys appointed to represent death- 
sentenced prisoners in state post-conviction proceed­
ings who failed to file a federal habeas petition 
within AEDPA’s one-year statute of limitations. 28 
U.S.C. § 2244(d)(1). In some instances, this was be­
cause of their failure to file a timely state petition, in 
others because counsel was ignorant of the applica­
ble federal laws.14

Even among death-penalty states that do provide 
some remedy for ineffective assistance of capital 
post-conviction counsel, only a few have adopted the 
standard set forth by this Court in Strickland v. 
Washington, 466 U.S. 668 (1984), for determining 
whether an attorney is minimally competent.15 
Elsewhere, relief appears limited to circumstances 
where post-conviction counsel effectively abandoned

13 See, e.g., Gore v. State, 24 So. 3d 1, 16 (Fla. 2009); State 
v. Hunt, 634 N.W.2d 475, 479-80 (Neb. 2001); State v. Mata, 
916 P.2d 1035, 1052-53 (Ariz. 1996); House v. State, 911 S.W.2d 
705, 712-13 (Tenn. 1995); Miller v. Maass, 845 P.2d 933, 934 
(Or. Ct. App. 1993); Colo. Rev. Stat. § 16-12-205(5); Mont. Code 
Ann. § 46-21-105(2); N.C. Gen. Stat. § 15A-1419(c); Ohio Rev. 
Code Ann. § 2953.21(I)(2); Va. Code Ann. § 19.2-163.8(D).

14 See, e.g., Hamilton v. Secretary, DOC, No. 08-14836, 2010 
WL 5095880, at *1-2 (11th Cir. Dec. 15, 2010); Howell v. 
Crosby, 415 F.3d 1250, 1251 (11th Cir. 2005); Damren v. 
McNeil, No. 3:03-cv-397, 2009 WL 129612, at *1-2 (M.D. Fla. 
Jan. 20, 2009); Banks v. Crosby, No. 4:03-cv-328, 2005 WL 
5899837, at *3 (N.D. Fla. July 29, 2005).

15 See, e.g., Jackson v. Weber, 637 N.W.2d 19, 22-24 (S.D. 
2001); Crump v. Warden, 934 P.2d 247, 303-04 (Nev. 1997); 
Hale v. State, 934 P.2d 1100, 1102-03 (Okla. Crim. App. 1997); 
Lozada v. Warden, 613 A.2d 818, 842-43 (Conn. 1992).



19

a death-sentenced prisoner.16
In addition, many death-penalty states constrain 

counsel in state post-conviction proceedings by limit­
ing compensation for legal work, as well as investi­
gative and expert assistance. For instance, in the 
rare circumstances where Alabama courts appoint 
state post-conviction counsel, there is an extremely 
low fee cap of $1,000. Ala. Code § 15-12-23(d).17 
Lawyers subjected to such a fee cap are prone to do 
no more than re-argue the claims raised on direct 
review or in their client’s initial pro se post- 
conviction pleading. Counsel lack the resources or 
incentive to develop additional claims, however meri­
torious.

16 See, e.g., Waters v. State, 574 N.E.2d 911, 911-12 (Ind. 
2004) (refusing to follow Strickland but allowing a death- 
sentenced prisoner “to begin anew his quest for post-conviction 
relief’ where “[cjounsel, in essence, abandoned [him]”); In re 
Sanders, 981 P.2d 1038, 1041 n.l, 1055 (Cal. 1999) (holding 
that “abandonment” by post-conviction capital counsel “is a 
relevant factor in determining whether a petition has shown 
good cause to justify a delay in presentation of claims”).

17 See also, e.g., Ariz. Rev. Stat. Ann. § 13-4041(F), (G) (cap­
ping attorneys’ fees at $100 per hour for up to 200 hours, but 
allowing additional compensation for “good cause”); Fla. Stat. 
§ 27.711(4) (capping investigative expenses at $15,000 absent 
“extraordinary circumstances” and attorneys’ fees at $84,000); 
S.C. Code Ann. §§ 16-3-26(B)(2), 17-27-160(B) (capping attor­
neys’ fees at $25,000); Tex. Code Crim. Proc. Ann. art. 11.071 
§ 2A(a) (capping state reimbursement for attorneys’ fees and 
expenses at $25,000, but providing counties with discretion to 
exceed this cap); Cal. Sup. Ct., Sup. Ct. Policies Regarding 
Cases Arising From Judgments of Death, § 2-2.1, available at 
http://www.courtinfo.ca.gov/courts/supreme/aa02f.pdf (capping 
investigation expenses at $25,000 in some cases and $50,000 in 
others).

http://www.courtinfo.ca.gov/courts/supreme/aa02f.pdf


20

The combination of funding limitations and the 
consequent reluctance of qualified lawyers to accept 
appointment are particularly worrisome because ex­
culpatory evidence tends to emerge at a relatively 
late stage in capital cases and often is revealed only 
by advances in DNA technology and growing con­
cerns over the reliability of other forensic tech­
niques. See, e.g., House v. Bell, 547 U.S. 518, 540-54 
(2006); Comm, on Identifying the Needs of the Fo­
rensic Sci. Cmty., Nat’l Research Council, Strength­
ening Forensic Science in the United States: A Path 
Forward 40-44 (2009), available at
http://www.ncjrs.gov/pdffilesl/nij/grants/228091.pdf.

Thus, even more so than at the time Giarratano 
was decided, courts (and the general public) have 
come to appreciate that post-conviction proceedings 
provide the primary forum for exposing the constitu­
tional violations that all too often pervade the inves­
tigation, prosecution, conviction, and sentencing of 
capital defendants. Cf. Samuel R. Gross et al., Ex­
onerations in the United States 1989 Through 2003, 
95 J. Crim. L. & Criminology 523, 531-33 (2005) 
(finding that erroneous convictions occur dispropor­
tionately in capital cases due to special circum­
stances that affect the investigation and prosecution 
of those cases).

D. State interests are now more aggres­
sively asserted in capital cases.

States have increasingly recognized that attor­
neys who are experienced in all aspects of state and 
federal post-conviction work will achieve better re­
sults than less experienced lawyers. While some 
death-penalty states fund specialized defender of-

http://www.ncjrs.gov/pdffilesl/nij/grants/228091.pdf


21

fices specifically to handle post-conviction proceed­
ings,18 almost all states have specialized capital ha­
beas teams to defend their interests in state and fed­
eral post-conviction proceedings. See Mark E. Olive, 
Capital Post-Conviction Representation Models: Les­
sons From Florida, 34 Am. J. Grim. L. 277, 283
(2007); cf. Gideon v. Wainuiright, 372 U.S. 335, 344 
(1963) (“That government hires lawyers to prosecute 
and defendants who have the money hire lawyers to 
defend are the strongest indications of the wide­
spread belief that lawyers in criminal courts are ne­
cessities, not luxuries.”).

In addition, there has been a substantial increase 
in the appointment of state solicitors general to su­
pervise appellate litigation on behalf of their state. 
Currently, at least thirty-seven states have solicitors 
general or someone with similar responsibilities — 
up from approximately eight at the time Giarratano 
was decided. See Peter Page, State Solicitor General 
Appointments Open Doors for Appellate Practitio­
ners, Natl L.J., Aug. 18, 2008, at 1; James R. 
Layton, The Evolving Role of the State Solicitor Gen­
eral: Toward the Federal Model"?, 3 J. App. Prac. & 
Process 533, 534 (2001). In many states, a key func­
tion of the solicitor general is to oversee capital ap­
pellate proceedings, especially before this Court. 
See, e.g., James C. Ho, Defending Texas: The Office of 
the Solicitor General, 29 Rev. Litig. 471, 473-74, 487- 
93 (2010).

18 Texas did so most recently, establishing the state-funded 
Office of Capital Writs to represent in state post-conviction pro­
ceedings all prisoners sentenced to death after September 1, 
2009. See Tex. Code Crim. Proc. Ann. art. 11.071 § 2(b).



22

Thus, what was already an unlevel playing field 
has become even more tilted, increasing the impor­
tance of effective state post-conviction counsel in 
capital cases.19
III. In light of subsequent developments, 

Giarratano and Coleman should be re­
considered or at least not extended.

The developments of the past twenty years ren­
der the assumptions underlying Giarratano and 
Coleman worthy of reconsideration. At a minimum, 
these developments make it inappropriate to extend 
Giarratano and Coleman to the factual circum­
stances of Maples’s case. Below, amicus sets out a 
graduated series of protections that this Court could 
adopt — either as a matter of constitutional right or 
through the equitable principles underlying federal 
habeas review — to ensure that Maples and other 
death-sentenced individuals are not unfairly penal­
ized for attorney conduct in post-conviction proceed­
ings that would call for constitutional relief if com­
mitted by trial or direct appeal counsel.

19 While federal law requires appointment of counsel for in­
digent capital offenders in federal habeas proceedings, 18 
U.S.C. § 3599, representation at that stage is insufficient by 
itself, given that developments since Giarratano and Coleman 
have magnified the importance of state post-conviction proceed­
ings for the adjudication of federal claims, see Section II.B su­
pra, and substantive federal habeas review is generally de­
pendent upon adequate presentation of those claims to the 
state court, see Section II.A supra.



23

A. This Court should recognize a constitu­
tional guarantee of competent state post­
conviction counsel in capital cases.

In Giarratano, it was undisputed that the Consti­
tution mandates “meaningful access” to state post­
conviction procedures which allow for litigation of 
constitutional challenges to capital convictions and 
sentences. See Giarratano, 492 U.S. at 14 (Kennedy, 
J., concurring in the judgment). The only out­
standing question was the scope of that mandate.

The meaningful-access right recognized in Giar­
ratano is rooted in the requirements of the Sixth 
Amendment right to counsel as well as the Due Proc­
ess and Equal Protection Clauses of the Fourteenth 
Amendment. See Halbert, 545 U.S. at 610; M.L.B. v. 
S.L.J., 519 U.S. 102, 120 (1996); Evitts u. Lucey, 469 
U.S. 387, 403-05 (1985). Additionally, the Eighth 
Amendment’s demand of heightened reliability in 
capital cases implies the need for special attention to 
procedural protections when the death penalty is in­
volved. See Beck v. Alabama, 447 U.S. 625, 637-38 
(1980). These constitutional safeguards evolve as 
times and conditions change.20 And so much has 
changed since Giarratano was decided that it is now 
time for this Court to recognize a constitutional right 
to competent state post-conviction counsel in capital 
cases.

20 See, e.g., Roper v. Simmons, 543 U.S. 551, 560-61 (2005) 
(Eighth Amendment); Duncan v. Louisiana, 391 U.S. 145, 149- 
50 & n.14 (1968) (Sixth and Fourteenth Amendments); Broum 
v. Bd. of Educ., 347 U.S. 483, 492-93 (1954) (Fourteenth 
Amendment); cf. Missouri u. Holland, 252 U.S. 416, 433-34 
(1920) (treaty power).



24

As detailed in Section II.A supra, state post­
conviction proceedings often serve as the only forum 
for developing and adjudicating the facts necessary 
to establish federal constitutional claims, including 
claims of actual innocence, and are the “principal fo­
rum” for legal consideration of such claims. See 
Harrington, 131 S. Ct. at 787. At the same time, 
state post-conviction procedures have become in­
creasingly governed by complex and time-sensitive 
rules, which are aggressively invoked by expert state 
prosecutors to foreclose further consideration of 
claims, including through submission of draft orders 
that state judges often adopt verbatim. See Section 
II.B supra. These developments have combined to 
greatly increase the perils facing death-sentenced 
individuals who are forced to initiate the state post­
conviction process without assistance of counsel.

Putting aside Alabama and a few other states, a 
national consensus has recognized these perils and 
responded to them by providing counsel for indigent 
condemned prisoners at the critical stage of investi­
gating, researching, drafting, and filing state post­
conviction pleadings. See Section II.C supra. This 
Court has regarded such emergent consensus as a 
key indicator of ‘“the evolving standards of decency 
that mark the progress of a maturing society’” for 
Eighth Amendment purposes. Roper v. Simmons, 
543 U.S. 551, 560-61 (2005) (quoting Trop u. Dulles, 
356 U.S. 86, 100-01 (1958) (plurality opinion)).21

21 Evolving standards regarding appropriate procedures call 
for constitutional recognition no less than evolving substantive 
norms. See, e.g., Woodson v. North Carolina, 428 U.S. 280, 289- 
94, 301 (1976) (lead opinion). Here, the evolution since Giar- 
ratano is at least as dramatic — in its volume, rapidity, and



25

Yet, without a federal constitutional guarantee of 
minimally effective counsel in state post-conviction 
proceedings, the actual performance of appointed at­
torneys for death-row prisoners in most states will 
likely remain “fundamentally inadequate to vindi­
cate the substantive rights provided.” Dist. Attor­
ney’s Office for the Third Judicial Dist. v. Osborne, 
557 U.S. _ ,  129 S. Ct. 2308, 2320 (2009). The ab­
sence of any system for the appointment of state 
post-conviction lawyers in Alabama and a few other 
jurisdictions, and the inadequacies and underfund­
ing of appointed counsel in many other death- 
penalty states, mean that the necessary preparation 
for timely filing adequate state and federal post­
conviction petitions is simply not done. As a result, 
it is virtually certain in places like Alabama, and not 
at all unlikely in other states, that valid claims of 
federal constitutional error will go unidentified, un­
developed, or unpresented. In other cases, all post­
conviction review is forfeited as a result of missed 
state or federal deadlines. See Section II.C supra.

Accordingly, this Court should reexamine Giar- 
ratano in light of the significant developments that 
have occurred in the intervening years and recognize 
that death-sentenced prisoners cannot fairly litigate 
constitutional claims raised in state post-conviction 
proceedings without a federal constitutional guaran­
tee of minimally competent counsel. Cf. Evitts, 469 
U.S. at 396 (“[A] party whose counsel is unable to

consistent direction of change — as it was in recent Eighth 
Amendment cases where this Court has found a national con­
sensus. Compare Roper, 543 U.S. at 564-65, and Atkins v. Vir­
ginia, 536 U.S. 304, 313-16 (2002), with Section II.C supra.



26

provide effective representation is in no better posi­
tion than one who has no counsel at all.”).22

B. Short of reconsidering Giarratano, the 
Court should recognize a right to state 
post-conviction counsel for claims that 
could not be pursued in prior litigation.

As discussed in Section I supra, Coleman left 
open the question of whether there is “an exception 
to the rule of Finley and Giarratano in those cases 
where state collateral review is the first place a pris­
oner can present a challenge to his conviction.” 
Coleman, 501 U.S. at 755. Short of overruling Giar­
ratano, this Court should recognize the exception 
sought by the petitioner in Coleman and hold that 
death-sentenced prisoners have a constitutional 
right to competent counsel to litigate claims that can 
be fully and fairly litigated for the first time only in 
state post-conviction proceedings (practically or as a 
matter of state law).23

22 As applied in this case, neither this remedial option nor 
any other discussed below would implicate 28 U.S.C. § 2254(i). 
Maples has not alleged that the ineffectiveness of his post­
conviction counsel is a “ground” for federal habeas relief in this 
case. Id.; Pet. Br. 13-14. Rather, he has alleged that the mis­
conduct of post-conviction counsel (among other things) is 
“cause” to excuse the procedural default and reach the merits of 
his underlying grounds for relief.

23 Amicus further submits that Coleman should be recon­
sidered to the extent it suggests that any such constitutional 
right extends only to the initial, or trial, stage of post­
conviction proceedings and not to subsequent appeals. See 
Coleman, 501 U.S. at 755-56. But reconsideration is unneces­
sary in this case because effective assistance at the trial stage 
of post-conviction proceedings should unquestionably require 
counsel to notify their client of the outcome of that proceeding.



27

Among those claims are alleged ineffective assis­
tance of trial and direct appeal counsel. As this 
Court has recognized, post-conviction proceedings 
are “preferable to direct appeal for deciding claims of 
ineffective-assistance” because such claims typically 
require investigation and development of a factual 
predicate beyond that which is contained in the trial 
record. Massaro v. United States, 538 U.S. 500, 504- 
OS (2003). It is for this reason that “ [a] growing ma­
jority of states” require or encourage defendants to 
raise claims of trial and appellate counsel ineffec­
tiveness in state post-conviction proceedings. Id. at 
508.24

In addition, state post-conviction proceedings are 
often the first forum for judicial review of constitu­
tional claims based on prosecutorial misconduct, 
such as withholding exculpatory or impeachment 
evidence in violation of Brady v. Maryland, 373 U.S. 
83 (1963). Such claims, by their very nature, tend to 
surface only after a defendant’s trial and conviction 
and require development of predicate facts that are 
not part of the trial record. See, e.g., Cone u. Bell,

See Smith v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 433-34 
(6th Cir. 2006) (holding that a “court’s ultimate decision re­
garding a particular legal proceeding is part of that legal pro­
ceeding, and appointed counsel’s duties . . . include the duty of 
informing her client of the outcome of the proceeding . . .  in a 
timely fashion so that the accused retains his control over the 
decision to appeal”). In a capital case where “there are non- 
frivolous grounds for appeal,” this duty follows a fortiori from 
Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000).

24 See, e.g., State ex rel. Thomas v. Rayes, 153 P.3d 1040, 
1043-44 (Ariz. 2007); Ardolino u. People, 69 P.3d 73, 77 (Colo. 
2003); Commonwealth v. Grant, 813 A.2d 726, 735-38 (Pa. 
2002) (cataloging cases).



28

556 U.S. _ ,  129 S. Ct. 1769, 1786 (2009); Banks v. 
Dretke, 540 U.S. 668, 675-76 (2004).

For such claims, the Giarratano plurality’s rea­
soning that “direct appeal is the primary avenue for 
review of capital cases,” and that state post­
conviction “serve [s] a different and more limited 
purpose,” no longer applies. 492 U.S. at 10, 11 (plu­
rality opinion). Rather, just as this Court concluded 
with respect to the procedures at issue in Halbert, 
state post-conviction review of a claim that could not 
have been litigated on direct appeal “ranks as a first- 
tier appellate proceeding requiring appointment of 
counsel” under the Due Process and Equal Protec­
tion Clauses. 545 U.S. at 609-10.

C. In the alternative, the Court should hold 
that a federal habeas petitioner has 
cause to excuse procedural default re­
sulting from state post-conviction coun­
sel’s errors that would rise to the level of 
a constitutional violation if committed at 
trial or on direct appeal.

Normally, federal habeas courts will not adjudi­
cate claims that are procedurally defaulted by an in­
dependent and adequate state rule. This important 
practice “is grounded in concerns of comity and fed­
eralism.” Coleman, 501 U.S. at 730. Yet the cause- 
and-prejudice standard that sometimes excuses pro­
cedural default recognizes that — to ensure the 
“ends of justice” and vindicate constitutional rights 
— federal courts, under some circumstances, must 
reach the merits of constitutional claims that were 
denied for procedural reasons in state court. See 
Schlup v. Delo, 513 U.S. 298, 319-21 (1995). The



29

cause-and-prejudice test is grounded in “‘equitable 
principles’ [that] have traditionally ‘governed’ the 
substantive law of habeas corpus.” Holland, 130 
S. Ct. at 2560 (quoting M unafv. Geren, 553 U.S. 674, 
693 (2008)); Schlup, 513 U.S. at 319 (“[T]he Court 
has adhered to the principle that habeas corpus is, at 
its core, an equitable remedy.”). In applying these 
equitable principles, this Court has latitude to de­
termine and reevaluate, when necessary, the con­
tours of cause and prejudice.

In light of the developments since Giarratano and 
Coleman described in Section II supra, competent 
state post-conviction counsel is now necessary for the 
proper litigation of constitutional claims that go to 
the fundamental fairness of a capital conviction and 
sentence. But even if this Court declines to use this 
case as a opportunity to recognize a federal constitu­
tional right to state post-conviction counsel along the 
lines proposed in either Section III .A or III.B supra, 
it flouts fundamental equitable principles for the 
federal courts to refuse to consider the merits of de­
faulted claims in a capital case where state post­
conviction counsel presents a federal constitutional 
claim to the state post-conviction court in a manner 
that is so procedurally improper that the conduct 
would violate Strickland, 466 U.S. 668, if committed 
by trial or direct appeal counsel. That is not to say 
that all errors by state post-conviction counsel 
should provide cause to excuse a state procedural de­
fault. Cf. Lawrence v. Florida, 549 U.S. 327, 336-37 
(2007). But where, as in this case, state post­
conviction counsel failed to act in a minimally com­
petent manner in a capital case, their deficient per­



30

formance should satisfy the first prong of the cause- 
and-prejudice test.

Although the Court in Coleman was unwilling to 
excuse a state procedural default under this line of 
reasoning, 501 U.S. at 753-56, the equitable princi­
ples underlying federal habeas review allow the 
Court to respond to new circumstances where, as 
here, there is no statutory provision directly applica­
ble. Cf. Holland, 130 S. Ct. at 2563 (‘“The ‘flexibility’ 
inherent in ‘equitable procedure’ enables courts ‘to 
meet new situations that demand equitable inter­
vention, and to accord all the relief necessary to cor­
rect particular injustices.’”) (quoting Hazel-Atlas 
Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 248 
(1944) (alterations omitted)). The “equitable inquiry 
required by the ends of justice,” Schlup, 513 U.S. at 
320, mandates such a reexamination in light of the 
developments in post-conviction practice discussed 
above.

D. Another option would be to find cause to 
excuse procedural default in a state such 
as Alabama that fails to provide the 
minimum constitutional safeguards that 
Giarratano requires.

Justice Kennedy’s controlling concurrence in 
Giarratano adopted a fact-sensitive approach to de­
termining whether the constitutional right of mean­
ingful access to the courts requires recognition of an 
ancillary right to appointment of counsel in state 
post-conviction proceedings for capital cases. See 
492 U.S. at 14-15 (Kennedy, J., concurring in the 
judgment).



31

Under this fact-sensitive approach, the present 
case stands in stark contrast to Giarratano. Neither 
of the two circumstances that Justice Kennedy iden­
tified in his concurrence as crucial to the outcome is 
true in Alabama today.

First, Virginia’s “prison system [was] staffed with 
institutional lawyers to assist in preparing petitions 
for post-conviction relief.” Id. at 14-15. Conversely, 
Alabama provides neither institutional lawyers nor 
any other form of state-funded assistance to help 
condemned prisoners prepare petitions for state 
post-conviction relief. See Equal Justice Initiative, 
The Death Penalty in Alabama 2 (Jan. 2011), avail­
able at http://eji.org/eji/files/02.03. ll%20Death% 
20Penalty% 20in%20Alabama%20Fact%20Sheet.pdf.

Second, at the time of Giarratano, “no prisoner on 
death row in Virginia [was] unable to obtain counsel 
to represent him in postconviction proceedings.” 
Giarratano, 492 U.S. at 14 (Kennedy, J., concurring 
in the judgment). By contrast, some Alabama death- 
sentenced prisoners have been unable to secure rep­
resentation for all or a significant portion of their 
post-conviction proceedings. See Am. Bar Ass’n, 
Evaluating Fairness and Accuracy in State Death 
Penalty Systems: The Alabama Death Penalty As- 
sessment Report 159 (June 2006), available at 
http ://www. americanbar.org/content/dam/aba/ migrat 
ed/moratorium/assessmentproject/alabama/report.au 
thcheckdam.pdf. That number would be far greater 
were it not for the support of mostly out-of-state pro 
bono resources which, as this case reveals, are not 
always a reliable alternative to a state-funded, coor­
dinated program.

http://eji.org/eji/files/02.03


32

In light of these and other serious flaws in Ala­
bama’s procedures for capital cases, see Pet. Br. 3-6, 
the state fails to provide the minimal constitutional 
safeguards required by Justice Kennedy’s controlling 
concurrence in Giarratano. Indeed, Alabama is a 
distinct outlier in comparison to the vast majority of 
death-penalty states that provide at least some level 
of access to counsel in capital post-conviction pro­
ceedings. See Section II.C supra. Neither Giar­
ratano nor Coleman justifies rigid application of pro­
cedural default rules to death-sentenced prisoners 
who are compelled to run the gauntlet of a post­
conviction process like Alabama’s. Accordingly, this 
Court should hold that, at least in Alabama capital 
cases, a federal habeas petitioner can demonstrate 
cause to excuse procedural default resulting from de­
ficient performance by state post-conviction counsel.

E. Coleman and Giarratano should not be 
extended to preclude federal habeas 
review for a death-sentenced prisoner 
abandoned by state post-conviction coun­
sel.

Even if the Court does not take any of the forego­
ing steps to safeguard the constitutional rights of 
death-sentenced prisoners who do not receive mini­
mally competent assistance of counsel in state post­
conviction proceedings, it should not extend the rea­
soning of Giarratano and Coleman to the distinctive 
facts at issue here. Relying on the plurality’s reason­
ing in Giarratano, Coleman held that, on federal 
habeas review, attorney ineffectiveness in state post­
conviction proceedings is not normally sufficient to 
establish cause for noncompliance with a state pro­
cedural rule. That holding was premised on the



33

notion that “the attorney is the petitioner’s agent 
when acting, or failing to act, in furtherance of the 
litigation,” and, therefore, except in circumstances 
where the Constitution gives a litigant a right to 
counsel, “the petitioner must ‘bear the risk of attor­
ney error.’” Coleman, 501 U.S. at 753 (quoting 
Murray v. Carrier, A ll  U.S. 478, 488 (1986)).

Yet, as Justice Alito recently pointed out, “ [c]om- 
mon sense dictates that a litigant cannot be held 
constructively responsible for the conduct of an at­
torney who is not operating as his agent in any 
meaningful sense of the word.” Holland, 130 S. Ct. 
at 2568 (Alito, J., concurring in part and concurring 
in the judgment). Where an attorney’s misconduct 
amounts to abandonment of his client and that at­
torney’s abandonment is responsible for a procedural 
default in state post-conviction proceedings, that de­
fault “cannot fairly be attributed” to the client. Cole­
man, 501 U.S. at 753. In these circumstances, the 
Court should hold that a death-sentenced petitioner 
has cause to excuse the default and obtain federal 
habeas review of the merits of his claims. See Pet. 
Br. 35-52. To hold otherwise would amount to a sig­
nificant extension of Coleman and Giarratano in 
complete disregard for the agency law principles 
upon which those decisions were premised. See Hol­
land, 130 S. Ct. at 2564-65; see also id. at 2566-68 
(Alito, J., concurring in part and concurring in the 
judgment) (distinguishing the circumstances in 
Coleman from the kind of abandonment which, 
under “‘well-settled principles of agency law,”’ pre­
vents counsel’s actions from being constructively 
attributable to the client) (quoting Coleman, 501 
U.S. at 754).



34

As this Court recently held, attorney misconduct 
that amounts to abandonment under agency law 
principles warrants equitable tolling of AEDPA’s 
statute of limitations. See Holland, 130 S. Ct. at 
2564-65. The same type of attorney misconduct 
should also generally establish a break in the agency 
relationship sufficient for a capital petitioner to es­
tablish cause to excuse a procedural default.25

Here, the evidence of attorney abandonment was 
at least as clear as it was in Holland. Maples’s two 
lead attorneys of record left their law firm and 
accepted new employment that prevented them from 
continuing to represent their client — and they did 
so without seeking permission to withdraw from the 
court or substituting alternate counsel. See Pet. Br. 
9-11. As a result, they ceased “operating as his 
agent in any meaningful sense of that word,” Hol­
land, 130 S. Ct. at 2568 (Alito, J., concurring in part 
and concurring in the judgment), and thus provided 
sufficient cause to excuse any resulting procedural 
default. See Pet. Br. 39-52.

F. Extension of Coleman and Giarratano is 
particularly inappropriate where the 
state is aware of, and takes inadequate 
steps to address, abandonment by post­
conviction counsel.

The narrowest ground for deciding this case turns 
on the state’s own complicity in Maples’s procedural 
default. It is axiomatic that where the acts or know­

25 As noted supra at 18-19 & n.16, some states take a simi­
lar approach in providing relief under state law when post­
conviction counsel effectively abandons a death-sentenced pris­
oner.



35

ing omissions of state officials are responsible for a 
petitioner’s noncompliance with a state procedural 
rule, that petitioner has cause to excuse the default 
on federal habeas review. See, e.g., Banks, 540 U.S. 
at 692-96; Strickler v. Greene, 527 U.S. 263, 283-84, 
288 (1999); Amadeo v. Zant, 486 U.S. 214, 222 
(1988). In such circumstances, the default results 
from “something external to the petitioner, some­
thing that cannot fairly be attributed to him,” and 
thus it would be inequitable to require a blameless 
petitioner to bear the consequences of that default. 
Coleman, 501 U.S. at 753; see also Carrier, A ll  U.S. 
at 488; Pet. Br. 22-34.

Here, Maples’s default was fairly attributable to 
the state. When copies of the post-conviction court’s 
order mailed to Maples’s two lead attorneys of record 
were returned unopened with “Return to Sender — 
Left Firm” written on the envelope, the court clerk’s 
office did nothing; it made no effort to contact the 
two attorneys, anyone else at their former firm, local 
counsel, or even Maples himself before the appeal 
deadline passed. See Pet. Br. 10-12.

The Court’s decision in Jones v. Flowers, 547 U.S. 
220, 229 (2006), makes clear that it is particularly 
inappropriate to extend Coleman and Giarratano to 
prohibit federal habeas review under the circum­
stances of this case. In Jones, the Court held that, 
when the loss of a home is at stake, the Due Process 
Clause prohibits state officials from sitting on their 
hands after an important state-issued notice is 
returned unopened and unclaimed; instead, those 
officials must make further efforts to ensure ade­
quate notice. 547 U.S. at 234. Similarly, where the 
“important and irreversible prospect” of a death sen­



36

tence is at stake, id. at 230, the Constitution cannot 
permit the state to merely “shrug [its] shoulders . . . 
and say ‘I tried,’” id. at 22 9.26 Although not always 
necessary, see Sections III.C and III.E supra, a con­
stitutional violation is certainly sufficient to estab­
lish cause to excuse a state-court procedural default. 
See Coleman, 501 U.S. at 752-55; Carrier, A ll  U.S. 
at 488.

CONCLUSION

For the foregoing reasons and those outlined by 
petitioner, the judgment of the Eleventh Circuit 
should be reversed.

Respectfully submitted,

J o h n  Pa y t o n  
Director- Counsel 
Counsel of Record 

D e b o  P. Ad e g b il e  
C h r is t in a  Sw a r n s  
J o h n a t h a n  Sm it h  
NAACP L e g a l  D e f e n s e  & 

E d u c a t io n a l  F u n d , In c . 
99 Hudson St., 16th FI. 
New York, NY 10013 
(212) 965-2200 
j pay ton@naacpldf. org

26 This constitutional violation is not cured by the fact that 
Maples’s local counsel received notice. It is unreasonable for 
Alabama to rely solely on notice to local counsel when the state 
is aware that, as a result of its failure to support an adequate 
system of post-conviction counsel, out-of-state firms working 
pro bono and public interest groups serve as primary counsel 
for its death-row population. See Pet. Br. 29-33.



37

M ay 25, 2011

J osh u a  Civin  
N AACP L egal  D efense  & 

Edu cation al  Fu n d , In c . 
1444 I St., NW, 10th FI. 
W ashington, DC 20005

Sam u e l  Spital  
Squ ire , San d ers  & 

D em psey  (US) LLP 
30 Rockefeller Plaza 
23rd FI.
N ew York, N Y  10112 

Counsel for Amicus Curiae



APPENDIX



A -l

Appendix

Survey of State Provision of Counsel for 
Indigent Death-Sentenced Prisoners in 

State Post-Conviction Proceedings
S t a t e P r o v i d e s  a  R i g h t  t o P r o v i d e s  a  R i g h t  t o

C o u n s e l  B e f o r e  
P o s t - c o n v i c t i o n  

P e t i t i o n  F i l e d

C o u n s e l  A f t e r  
P o s t - c o n v i c t i o n  

P e t i t i o n  F i l e d

Alabama No No (but courts have discre­
tion to appoint counsel after 

the petition is filed)
Ala. Code § 15-12-23(a); 
Ala. R. Crim. P. 32.7(c)

Arizona Yes
Ariz. Rev. Stat. Ann. 

§ 13-4041(B)

n/a

Arkansas Yes
Ark. R. Crim. P. 37.5(b)

n/a

California Yes
Cal. Gov’t Code 

§ 68662; In re Ander­
son, 447 P.2d 117, 131 

(Cal. 1968)

n/a

Colorado Yes
Colo. Rev. Stat. 
§ 16-12-205(1)

n/a

Connecticut Yes
Conn. Gen. Stat. 

§ 51-296

n/a

Delaware Yes
Del. Super. Ct. R. 
Crim. P. 61(1)(3)

n/a

Florida Yes
Fla. R. Crim. P. 

3.851(b)

n/a

Georgia No
Gibson v. Turpin, 513 

S.E.2d 186, 188 
(Ga. 1999)

No



A-2
S t a t e P r o v i d e s  a  R i g h t  t o  

C o u n s e l  B e f o r e  
P o s t - c o n v i c t i o n  

P e t i t i o n  F i l e d

P r o v i d e s  a  R i g h t  t o  
C o u n s e l  A f t e r  

P o s t - c o n v t c t i o n  
P e t i t i o n  F i l e d

Idaho Yes
Idaho Crim. R. 44.2(1)

n/a

Indiana No Yes (as long as the public 
defender “determines the 

proceedings are meritorious 
and in the interests of 

justice”)
Ind. R. of P. for Post- 

Conviction Remedies 1, § 9
Kansas No Yes

Kan. Stat. Ann. 
§ 22-4506(d)(2)

Kentucky No (but the Kentucky 
Department of Public 
Advocacy may assign 
counsel pursuant to 

Ky. Rev. Stat.
§ 31.110(2)(c); see also 

Fraser v. Common­
wealth, 59 S.W.3d 448, 

456 (Ky. 2001))

Yes (as long as the petition 
raises material issues of 

fact)
Ky. R. Crim. P. 11.42(5)

Louisiana Yes
La. Rev. Stat. Ann. 

§ 15:178

n/a

Maryland No Yes
Md. Code Ann. Crim. Proc. 
§ 7-108(a); Md. Rule 4-401

Mississippi Yes
Miss. Code Ann. 

§ 99-39-23(9)

n/a

Missouri No Yes
Mo. Rev. Stat.

§§ 547.360(5), 547.370
Montana Yes

Mont. Code Ann. 
§ 46-21-201(3)

n/a



A-3
S t a t e  j P r o v i d e s  a  R i g h t  t o  

C o u n s e l  B e f o r e  
P o s t - c o n v i c t i o n  

P e t i t i o n  F i l e d

P r o v i d e s  a  R i g h t  t o  
C o u n s e l  A f t e r  

P o s t - c o n v i c t i o n  
P e t i t i o n  F i l e d

Nebraska Yes
(provided that the 

public defender consid­
ers the proceedings 

“meritorious and in the 
interest of justice”) 

Neb. Rev. Stat.
§ 23-3402(1)

n/a

Nevada No Yes
Nev. Rev. Stat. 
§ 34.820(l)(a)

New
Hampshire *

No No (but the trial court has 
discretion to appoint coun­
sel to assist post-conviction 
petitioners in “complicated” 

cases)
State v. Hall, 908 A.2d 766, 

770 (N.H. 2006)
North

Carolina
Yes

N.C. Gen. Stat. 
§ 7A-451(c)

n/a

Ohio Yes
Ohio Rev. Code Ann. 

§ 2953.21(1)0)

n/a

Oklahoma Yes
Okla. Stat. tit. 22, 

§ 1089(B)

n/a

Oregon No Yes
Or. Rev. Stat. § 138.590

Pennsylvania Yes
Pa. R. Crim. P. 

904(H)(1)

n/a

South
Carolina

No Yes
S.C. Code Ann. 
§ 17-27-160(B)



A-4

S t a t e P r o v i d e s  a  R i g h t  t o P r o v i d e s  a  R i g h t  t o

C o u n s e l  B e f o r e  
P o s t - c o n v i c t i o n  

P e t i t i o n  F i l e d

C o u n s e l  A f t e r  
P o s t - c o n v i c t i o n  

P e t i t i o n  F i l e d

South
Dakota

No Yes
S.D. Codified Laws 

§ 21-27-4
Tennessee No Yes

Tenn. Code Ann. 
§ 40-30-107(b)(1)

Texas Yes
Tex. Code Crim. Proc. 

Ann. art. 11.071(2)

n/a

Utah Yes
Utah Code Ann. 

§ 78B-9-202

n/a

Virginia Yes
Va. Code Ann. 

§ 19.2-163.7

n/a

Washington Yes
Wash. Rev. Code 

§ 10.73.150(3)

n/a

Wyoming No Yes
Wyo. Stat. Ann. 
§ 7-6-104(c)(ii)

* Under the current statutory regime in New Hampshire, there 
has been only one death sentence, and it is still pending on di­
rect review. See State v. Addison, 7 A.3d 1225, 1256 (N.H. 
2010).